Monday, November 05, 2018

JOTWELL: Levy on Re on Marks

The new Courts Law essay comes from Marin Levy (Duke), reviewing Richard Re, Beyond the Marks Rule (Harv. L. Rev., forthcoming), which critiques the Marks Rule and its (ineffective) efforts to create binding precedent absent a majority opinion.

Posted by Howard Wasserman on November 5, 2018 at 10:34 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Friday, November 02, 2018

Packers fan finds counsel for First Amendment claim against Bears

I have written about Beckman v. Chicago Bears, a lawsuit by a Bears season-ticket holder and Packers fan who was prevented from going onto the field in Packers gear. Proceeding pro se (although with some informal guidance for a time), Beckman survived a 12(b)(6) by a very forgiving district court. It now appears Beckman has obtained counsel for the long-haul--the First Amendment Clinic at Duke and a Chicago attorney named Michel Lieber.

I think his First Amendment claim is a good one, if he can get past the state action problems. I remain surprised it took him this long to find counsel, but I am glad he found someone. This could get interesting.

Posted by Howard Wasserman on November 2, 2018 at 02:38 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Thursday, October 25, 2018

On the Georgia voting case

A district judge in the Northern District of Georgia on Wednesday preliminarily enjoined enforcement of certain regulations, specifically the "exact match" requirements for absentee ballots. Plaintiffs were three voting-rights organizations and a number of individual voters. A few thoughts:

• This is the type of case that Amanda Frost highlights as appropriate for universal* injunctions--time-sensitive and on a large scale. But this case also shows ways to extend the scope of the injunction by extending the scope of litigation. The court found that the voting-rights organizations had direct standing, given the burdens the regulations placed on them in having to notify the public of this problem. The organizations also argued associational standing on behalf of their members, although the court did not address that. The case also would have been perfect for a 23(b)(2) class and the court could have entered a classwide preliminary injunction prior to certification.

[*] Another reason "universal" works better as a term--an injunction halting enforcement of state law can be universal in extending beyond the parties, but not nationwide in any sense. And to then have nationwide and statewide injunctions would add a layer of nomenclature to the identical problem.

• It is interesting that no political party or campaign sued and attempted to assert third-party standing on behalf of voters (the typical path to broad injunctive relief against voting restrictions). This illustrates the way in which the franchise has become a partisan issue--one party wants to make voting more demanding (put aside whether the reasons are valid or not), the other party wants to make voting easier and available for more people (again, put aside whether for valid reasons or not). So a party jumping into a lawsuit, even to protect a neutral principle such as the right to vote, will appear to be acting for partisan advantage. This is especially true in Georgia, where the person making and enforcing the restrictions is a candidate for governor.

Posted by Howard Wasserman on October 25, 2018 at 11:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Friday, October 19, 2018

Misapplying pleading

Attorney David Lurie criticizes the lawsuit by former DNC employees and Democratic donors against the Trump Campaign for its role in disseminating the Wikileaks documents. I largely agree with his substantive First Amendment points, at least absent some stronger connection between the campaign and the Russian hackers and/or Wikileaks.

My concern is this paragraph:

But absent a basis to assert that that Trump campaign reviewed or otherwise knew of what was actually contained in the emails, the plaintiffs’ allegation that the campaign launched a scheme with the Russians to plot out the dissemination of materials to “maximize their political impact” seems to be based on speculation, not facts. And the plaintiffs’ claim that the Trump campaign knew that their private information, or that of others, was going to be disseminated seems all the more speculative.

A later paragraph allows that "if the Mueller investigation ultimately does provide evidence that the Trump campaign actually “partnered” with the Russian government to publish the stolen DNC documents, a civil lawsuit could well be the very least of the president’s problems."

Both of these statements ignore the nature of civil pleading in federal court. At least before Twiqbal turned it into something different, pleading is supposed to be based on the plaintiff's allegations that may be speculative, because the plaintiff often/usually does not and cannot know at the outset what other people or organizations knew or did. That is what discovery is for--to uncover and obtain evidence to support those allegations. To require more before the plaintiffs have had an opportunity and authority to obtain information creates an impossible situation. Moreover, it should not only be for the Mueller investigation to provide evidence--civil litigation also exists to provide evidence of misconduct, in the course of proving that civil wrongdoing occurred. Lurie's argument is consistent with Twiqbal's approach to pleading; I do not think it wrestles with that problem.

Again, I believe the complaint is defective for other reasons--it alleges less collusion between the campaign and the Russians and more "advantage gained," which is not sufficient under the First Amendment. But the speculative nature of the allegations of what happened should not be a problem at the pleading stage. And this case illustrates the problem.

Posted by Howard Wasserman on October 19, 2018 at 03:43 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (5)

Wednesday, October 17, 2018

SLAPP dismissal of Stormy Daniels' defamation suit

Judge Otero of the Central District of California dismissed Stormy Daniel's defamation action against President Trump under the Texas anti-SLAPP statute, holding that the President's tweets were rhetorical hyperbole and imposing attorney's fees under the statute.

Three quick thoughts.

The basic point about rhetorical hyperbole is correct as a matter of the First Amendment. I think the basic premise of this defamation suit is problematic--"A accuses X of doing something, X denies it, so A sues X for defamation for calling her a liar."

Anti-SLAPP suits are swallowing the First Amendment  as a defense to defamation, in a way I do not believe the statutes were intended to do. SLAPP stands for "strategic lawsuit against public participation." The paradigm that motivated these laws was Wal Mart bringing a defamation suit against a citizen who spoke at a city council meeting against a proposal to build a Wal Mart in town--where the lawsuit is designed to deter citizens from engaging in the public discussion. The statutes were geared towards situations with power and money imbalances (hence the fee-shifting), where the point of the suit is to make people think twice about engaging in public discussion over these matters. Not every defamation suit is a SLAPP suit. It certainty does not fit this suit--a defamation claim against the wealthy President of the United States over his obnoxious tweets, with no realistic prospect that anyone will be deterred from public participation. This seems a case that should be left to the First Amendment (especially given the court's focus on rhetorical hyperbole, a First Amendment concern).

The circuit split continues over whether SLAPP statutes apply in federal court. But this case offered several wrinkles. Texas law applied, so C.D. Cal. was applying the Texas SLAPP statute, which the Fifth Circuit has not yet determined applies in federal court. And because the case was transferred from the Southern District of New York to the Central District of California, Second Circuit precedent (which has not determined the Erie issue) applies rather than Ninth Circuit (which holds that the SLAPP laws do apply). A cert petition in the Tenth Circuit case is pending; I wonder if the Court will be more interested in the issue.

An additional wrinkle is that the district court arguably gave the game away at one point. In explaining why the SLAPP motion could be resolved without discovery, the court analogized it to a 12(b)(6). But if this is the same as a 12(b)(6), then there is a controlling federal statute that should be applied over any state law.

Posted by Howard Wasserman on October 17, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (11)

Friday, October 12, 2018

Flipping the burden on voluntary cessation

This decision from the Fifth Circuit seems wrong, at least in its analysis. The court found moot a challenge to the New Orleans Public Defender's wait list for non-capital cases, because the state legislature allocated the PD's office sufficient funds and the office eliminated the wait list. The court stated:

we are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude." Absent evidence to the contrary, we are to presume public-spiritedness, says the Supreme Court. Government officials "in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties." So, "[w]ithout evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.

But this seems to flip the burden of persuasion on voluntary cessation, presuming the government will not resume unlawful conduct (because the government is public-spirited) absent evidence from the plaintiff to the contrary. But this seems inconsistent with SCOTUS' insistence that "the defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."

It does not seem possible to reconcile this case with Nike, at least in terms of the stated standard. The unprincipled explanation is that the Fifth Circuit was suspicious of the entire case and so was looking for a way to dump it. The plaintiffs and the defendant (the PD Office) agreed that the wait list was constitutionally invalid and the PD enacted the policy only because the lack of legislative funding tied its hands. The court hints that the entire action is "a coordinated public-relations effort to force funding" rather than a genuine attempt to enforce constitutional rights.

Suspicion aside, this agreed-upon conclusion meant it was unlikely that the PD would reenact the challenged policy on its own. Which may be true and may justify finding the case moot. But the burden remains on the PD to show that, not on the plaintiffs to rebut the assumption.

Posted by Howard Wasserman on October 12, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Sunday, October 07, 2018

Half measure on universal injunction in sanctuary cities case

On Thursday, District Judge Orrick of the Northern District of California enjoined enforcement of DOJ regulations denying law enforcement funds to sanctuary cities. Judge Orrick previously enjoined enforcement of a presidential order denying funds to sanctuary cities. Judge Orrick made that prior injunction universal, although the Ninth Circuit narrowed it to protect only San Francisco and non-party California, concluding that the record did not support universality.

Undeterred, Judge Orrick made this injunction universal, although with several pages of analysis and justification. That analysis ultimately comes down to this--when a narrow law or regulation (or at least a federal law or regulation) is constitutionally invalid, a universal injunction is proper. And despite the rhetoric of "careful consideration," that principle is unbounded and always applicable.

The court acknowledges (and purports to share) the concerns that universality preempts percolation of issues. But then he offers two points in response: 1) the issues here are the same as in the Seventh and Third Circuits, so percolation is occurring and 2) this is a "narrow constitutional issue," so it "does not seem to be the type of situation in which allowing more cases to percolate in federal courts would be of much benefit." The second point is simply wrong. Pure and narrow legal issues benefit from percolation, from multiple sets of eyes considering and analyzing legal questions; this is the first time I have heard it suggested otherwise. The first point misses the main issue: The first court to enter a universal injunctions ends (or should end) all litigation on the issue,; this renders litigation in other courts either moot (because any party to the second action is already protected by the original universal injunction) or dangerous (because the second court issues an order conflicting with the original universal injunction, potentially imposing conflicting obligations on the defendant).

But the court hedged slightly, staying the universality pending appellate review of a narrower alternative holding about the scope of the underlying federal statute (which applied only to the parties and thus did not warrant universality). This may become a common move between district courts, who seem to like universality, and courts of appeals, who are more circumspect about scope--make the injunction universal, but stay it. Judge Leinenweber of the Northern District of Illinois made the same move.

Posted by Howard Wasserman on October 7, 2018 at 10:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Thursday, October 04, 2018

Slate discovers judicial departmentalism

Slate's Mark Joseph Stern contemplates the "full-blown constitutional crisis" that will arise if the Democrats regain control of the White House and Congress and attempt to resist an illegitimate Supreme Court. While finding the tools of segregationists "appalling," he suggests Democrats and progressives may find this the only option.

In reality, Stern is describing judicial departmentalism. But he fails to recognize the judgment/precedent distinction that makes this not a constitutional crisis but how the interbranch constitutional conversation should function. This conversation can produce two outcomes. One is that the judicial view will prevail because of the incentives (loss of qualified immunity, attorney's fees, repeated losses) for the executive to voluntarily comply. The other is that executive non-compliance with precedent (while following individual judgments) may cause the judiciary to change course.

Posted by Howard Wasserman on October 4, 2018 at 10:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Tuesday, October 02, 2018

Jurisdictionality confusion lives

I have not been writing or reading about jurisdictionality of late, so I was surprised to see that courts seem to be making the same mistakes. In this case from the Third Circuit, the district court had held that so-called statutory standing of a non-U.S. plaintiff under RICO was jurisdictional; the court of appeals affirmed, although shifting the framing to merits rather than jurisdiction. It said:

Because this case does not involve Article III standing, but rather presents an issue of statutory standing, subject matter jurisdiction is not implicated, and the parties incorrectly relied on Rule 12(b)(1) . Our precedent makes clear that "[c]ivil RICO standing is usually viewed as a 12(b)(6) question of stating an actionable claim, rather than as a 12(b)(1) question of subject matter jurisdiction." [*5] 38 Moreover, given that Rule 12(b)(6) provides a plaintiff with "significantly more protections,"39 and because we may affirm on any ground supported by the record and "there is no prejudice to appellants in our reviewing the district court's dismissal as if it were grounded on Rule 12(b)(6) ,"40 we will review this matter under Rule 12(b)(6) . Accordingly, we "consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record."41 In evaluating whether the complaint adequately pleads the elements of standing, we accept as true all material allegations set forth in the complaint and construe those facts in favor of Plaintiffs, the nonmoving party.42

I would have thought that Morrison, which held that extraterritoriality is merits, and Lexmark, which held that statutory zone of interest is merits, would have made this obvious. But Circuit precedent distinguishes Article III standing from statutory standing and lets the merits/jurisdictionality distinction turn on that. So whether standing is Article III or statutory often becomes a point of dispute between the parties and in the case. All of which reveals why Fletcher continues to be right and the best understanding is that is all about the cause of action and who can sue whom for what--and thus should be about the merits.

Posted by Howard Wasserman on October 2, 2018 at 10:29 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Saturday, September 29, 2018

"Nationwide" Injunctions Are Really "Universal" Injunctions and they are Never Appropriate (Final)

I am pleased that the final version of my article on universal injunctions has been published in Lewis & Clark Law Review. The editing process over the summer was quite adventurous. I added four or five different updates and sets of changes to account for new developments, including resolution of the travel ban (and Justice Thomas' concurring opinion), the court of appeals decisions on scope-of-injunction in both sanctuary-city cases, and the class action in the unaccompanied-minor abortion litigation.

Posted by Howard Wasserman on September 29, 2018 at 09:00 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Thursday, September 27, 2018

Arguing about the right issue

Bloomberg reports on oral argument in Hargan v. Garza, the challenge to HHS policy surrounding pregnant unaccompanied immigrant teens seeking abortions. (Marty Lederman analyzes the arguments). The district court certified a class of all pregnant immigrant teens in HHS detention, then issued a class-wide injunction. According to the report, the plaintiffs' attorney received some pushback on the scope of that class, because it includes pregnant teens who are not seeking abortions (counsel responded that the issue also was access to abortion counseling).

The point is that the plaintiffs in this action followed the right procedures--define and redefine the class, then have the injunction match the class. Universal injunctions in individual cases allow plaintiffs to skip that step--no one would take on the difficult work of defining and certifying a class if the court is willing to leap to an injunction that protects the universe based on a complaint by one person.

Posted by Howard Wasserman on September 27, 2018 at 08:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Wednesday, September 26, 2018

Can you say "Speech or Debate"?

I am a Democrat. But this may be the dumbest thing I have seen. Even if a court could enjoin executive branch officials to turn over documents (questionable on political question grounds), the Speech or Debate Clause makes about as clear as anything in the Constitution that a court cannot enjoin legislative officials from taking a fundamental legislative action such as a vote. As one commentator put it, that's just not how any of this works. I also doubt Merkley has standing to sue the executive, but there is no reason to even reach that issue.

Posted by Howard Wasserman on September 26, 2018 at 04:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, September 13, 2018

Mark up of Injunction Authority Clarification Act

The House Judiciary Committee marked-up the Injunction Authority Clarification Act, the bill that would eliminate universal injunctions. No word on what happened, although it did start a conversation on the CivProProf Listserv.

In addition, Jeff Sessions announced litigation guidelines for DOJ attorneys in litigating the scope of injunctions. Interestingly, Sessions' statement shows he still does not understood the issue fully, because he twice rails about "single (unelected) district judges" issuing these injunctions. But the problem of universal injunctions improperly protecting non-parties has nothing to do with the number of judges on the case or the level of court. SCOTUS cannot issue (or affirm) universal injunctions any more than a district court can enter universal injunctions. SCOTUS only can affirm a particularized injunction and thereby prohibit enforcement of the challenged law against the named plaintiff, on threat of contempt; the judgment and injunction go no further. SCOTUS's decision may halt future enforcement against non-parties, but purely as a matter of binding precedent, not as a matter of the injunction itself.

Posted by Howard Wasserman on September 13, 2018 at 04:56 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Yet evading review

Mootness can be overcome* if the claim is capable of repetition yet evading review. One important limitation on this doctrine, that often gets confused or overlooked, is that the harm must be reasonably likely to recur as to this plaintiff, not generally and not as to someone else.

[*] I do not like to speak of it as an "exception" to mootness because I subscribe to Scalia's argument that a case that is C/R/E/R is simply not moot.

The Eighth Circuit held that a an action by a Democratic elector challenging Minnesota's faithless-elector law was not C/R/E/R. The court held that it did not evade review because the plaintiff waited too long to file suit, thereby shortening the time period. Rather than suing on November 8 (right after the election) or November 29 (when the results were certified), he waited until December 19, the day his vote (for Bernie Sanders) was discounted and he was removed as an elector. That left only 2 1/2 weeks to litigate, whereas a lawsuit on December 8 would have allowed almost two months for expedited litigation in both the trial court and court of appeals.

But that assumes the court would have found standing and ripeness on November 8, which is not certain. The plaintiff would have argued then that he intended to vote for Sanders and that the faithless-elector law would disqualify his vote. But courts are so inconsistent about standing that it is hard to know whether that would work. Moreover, the evading-review applies when the time is too short to litigate the issue fully, which must included SCOTUS review. So while the "district court plainly was prepared to resolve the matter with dispatch (it convened a hearing within three days and ruled on the fourth), and this court has demonstrated that it can expedite appeals in time-sensitive cases," that does not account for SCOTUS, which may have wanted a crack at a case declaring invalid a faithless-elector law. The notion that two months would have been enough time to fully litigate this issue, had the plaintiff only not sat on his rights, seems dubious.

It also is unnecessary, because the better argument is that this is not reasonably capable of repetition as to this person. The plaintiff could not show a "reasonable expectation" that he would be subject to this law again. It is doubtful the Minnesota Democratic Party will appoint him as an elector. And he cannot show that he plans to vote for someone other than the popular-vote winner so as to have the law enforced against him; that is too unknown to constitute a remediable injury at this point.

Posted by Howard Wasserman on September 13, 2018 at 07:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Tuesday, September 11, 2018

Injunction Authority Clarification Act of 2018

Introduced by House Judiciary Chair Bob Goodlatte (who miraculously discovered the constitutional command for particularized injunctions on January 20, 2017), the bill prohibits "an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure."

Goodlatte's conversion of partisan convenience aside, it is a good bill. It addresses and eliminates the real problem of non-party protection, without conflating distinct and non-problematic issues of geographic scope (by controlling venue) or source (by pushing cases to three-judge district courts). It leaves broad relief available through 23(b)(2) injunctive class actions. And it does not purport to change the Court's standard for the scope of an injunction--commensurate with the violation and no more burdensome than necessary to provide complete relief; the bill thus should continue to allow broad systemic injunctions where remedies are indivisible (e.g., legislative redistricting or religious displays) or where relief to the non-party is necessary for the plaintiff to obtain complete relief.

And on one old scholarly note--I am glad the bill does not speak of jurisdiction but of remedy, which should be a non-jurisdictional merits-related issue.

Posted by Howard Wasserman on September 11, 2018 at 07:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Friday, September 07, 2018

JOTWELL: Smith on Tang on the role of political power in judicial review

The new Courts Law essay comes from Fred Smith, Jr. (Emory), reviewing Aaron Tang, Rethinking Political Power in Judicial Review (Cal. L. Rev., forthcoming), arguing that courts should be less willing to invalidate laws that burden the politically powerful, a new corollary to the longstanding political-process idea that courts be more willing to invalidate laws that burden the powerless.

Posted by Howard Wasserman on September 7, 2018 at 11:47 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Thursday, September 06, 2018

Ministerial exemption as a mandatory merits defense

I have thought much about the jurisdictional status of the ministerial exemption since SCOTUS decided (correctly) in Hosanna-Tabor that the exemption was a merits-based affirmative defense and not a limit on the court's jurisdiction.

But that makes footnote 4 of this Third Circuit case a bit strange. The court held that the ministerial exemption barred a pastor's breach-of-contract claim, granting summary judgment for the Church on exemption grounds, even though the pastor was the one who moved for summary judgment and the Church never raised the defense. The court noted the following:

The ministerial exception is an affirmative defense. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 , 195 n.4, 132 S. Ct. 694 , 181 L. Ed. 2d 650 (2012) (stating that the ministerial exception "operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar"). Although the District Court, not the Church, first raised the ministerial exception, the Church is not deemed to have waived it because the exception is rooted in constitutional limits on judicial authority. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 , 581-82 (6th Cir. 2018) (holding that a defendant "has not waived the ministerial-exception by failing to raise it . . . because '[t]his constitutional protection is . . . structural'" (citation omitted)); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829 , 836 (6th Cir. 2015) (explaining that Hosanna-Tabor's rationale for recognizing the ministerial exception establishes that "the Constitution does not permit private parties to waive the First Amendment 's ministerial exception" because "[t]he constitutional protection is not only a personal one; it is a structural one that categorically prohibits federal and state governments from becoming involved in religious leadership disputes"). Moreover, Lee did not argue before the District Court that the Church waived the defense. Therefore, it was appropriate for the District Court to consider the ministerial exception.

Hosanna stated that the ministerial exemption is not a jurisdictional bar. But the second sentence contradicts that by describing it as "rooted in constitutional limits on judicial authority"--which is the definition of a jurisdictional bar. Rather, we should think of the exemption as a  mandatory merits defense--although a limit on substantive merits, it has a structural basis and thus cannot be waived. As Scott Dodson has argued, mandatoriness or non-waivability is a consequence, not a defining characteristic--some defenses can be so important as to be non-waivable, even if they go to merits and have nothing to do with adjudicative jurisdiction.

Posted by Howard Wasserman on September 6, 2018 at 11:55 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Tuesday, September 04, 2018

Judge Willett questions qualified immunity

Fifth Circuit Judge Don Willett, a conservative and Trump long-lister for SCOTUS, "concurred dubitante" to question qualified-immunity doctrine in this case. (H/T: Volokh Conspiracy, HTing Josh Blackman). The court found that the Texas Medical Board violated the rights of the plaintiff doctor and two patients in issuing and enforcing administrative subpoenas, but that the right was not clearly established.

Willett derides qualified immunity as a deus ex machina that smacks of "unqualified impunity" by letting officers behave badly so long as they are the first to behave badly. He emphasizes two problems with current doctrine--the inconsistency over how factually similar precedent must be to clearly establish a right and the continued tendency of courts to skip merits and decide the right is not clearly established, thereby depriving plaintiffs of precedent that can be used to clearly establish the right. Requiring a plaintiff to produce identical precedent as courts create less precedent is a catch-22, an Escherian Stairwell, and a heads-defendans-win-tails-plaintiffs-lose situation. Willett joins the growing cross-ideological chorus of judges (including Justices Thomas and Sotomayor, as well as Judge Jack Weinstein) and scholars (Will Baude and Joanna Schwartz) urging recalibration of the doctrine.

On that cross-ideological consensus, it is telling that Willett's statement comes in an ideologically unique case--a regulatory body allegedly overstepping its authority in investigating a licensed professional sounding in the the regulatory over-zealousness that libertarian judges dislike. It does not come in the more frequent (and ideologically different) qualified immunity case case arising from a police officer using excessive force against an unarmed person of color.

Posted by Howard Wasserman on September 4, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Sunday, September 02, 2018

Damnatio memoriae

This is an interesting case from the Sixth Circuit (H/T: Volokh Conspiracy). Plaintiff sued the recorders of deeds throughout Ohio, alleging that continued maintenance of deeds, plat maps, and other property documents containing (unenforceable) racially restrictive covenants violated equal protection and the FHA. The court held that the plaintiff lacked standing. He suffered no economic injury because he offered no evidence that he had been unable to purchase property. Any non-economic injury of a feeling of not belonging was not particularized to him, but undifferentiated and generalized.

The majority opinion, written by Judge Boggs, ends on the following:

In ancient Rome, the practice of damnatio memoriae, or the condemnation of memory, could be imposed on felons whose very existence, including destruction of their human remains, would literally be erased from history for the crimes they had committed. Land title documents with racially restrictive covenants that we now find offensive, morally reprehensible, and repugnant cannot be subject to damnatio memoriae, as those documents are part of our living history and witness to the evolution of our cultural norms. Mason’s feeling of being unwelcomed may be real. A feeling cannot be unfelt. But Mason’s discomfort at the expression of historical language does not create particularized injury. The language in question is purely historical and is unenforceable and irrelevant in present-day land transactions.

This prompted a two-paragraph concurrence from Judge Clay:

I concur in the judgment and, for the most part, in the opinion’s analysis, but I do not entirely agree with the majority’s suggestion that we cannot, under appropriate circumstances, modify or dispense with documents that are “part of our living history and witness to the evolution of our cultural norms.” Justice may require us to repudiate or revise elements of our “living history” if those elements—whether they be public records, flags, or statues—are shown to encourage or perpetuate discrimination or the badges and incidents of slavery; indeed, racial epithets that were once accepted as commonplace have not been preserved, and they have sometimes been stricken from our modern vernacular. We apply an even stricter standard where, as here, the government is the source of, or has ratified, language that has the purpose or effect of encouraging racial animus. We need not erase our history in order to disarm its harmful legacy, but victims of invidious discrimination who have suffered particularized injury as a result of the application of historical language should be able to seek redress, consistent with the context and the factual circumstances of their cases.

I also fear that the majority’s statement that “Mason’s discomfort at the expression of historical language does not create particularized injury” could be misunderstood or taken out of context to suggest that feelings of discomfort with racially discriminatory language could never create a cognizable injury. I do not, however, read the majority opinion as foreclosing a properly pleaded claim arising out of such racially discriminatory language, especially under circumstances that implicate governmental instrumentalities. Rather, I read the opinion to hold that the plaintiff in this action has simply failed to plead sufficient facts to demonstrate a legally cognizable injury. If and when a plaintiff shows such an injury, this Court will have to reconcile the importance of maintaining our recorded history with our vision of government speech that promotes—not hinders—a free and equal society. I do, however, respectfully concur.

 This dispute gets at an important piece of the model of my model of constitutional litigation. There is no judicially remediable constitutional harm coming from legal documents disconnected from actual or threatened executive or private enforcement. The dispute here is over real-estate documents. But the same arguments surround outmoded laws (e.g., anti-miscegination laws or prohibitions on same-sex marriage) that remain on the books but could not be successfully enforced in court. The legislature could repeal these statutes, while it would take much more to undo these sorts of legal documents. But the idea is the same--law (apart from enforcement) cannot and should not be erased by a court because of the "message" it sends from continuing to exist or having existed in the past. The court framed this as lack of standing; a good Fletcherian would call this the lack of remediable substantive constitutional rights.

Judicial departmentalism adds an extra wrinkle, because an executive could attempt to enforce such a law in the face of contrary precedent. That effort will fail once the dispute reaches a court, which is bound by precedent; it also will result in attorney's fees and potential Rule 11 sanctions. But it justifies recent efforts to get legislatures to repeal anti-miscegination laws. The arguments have focused on the symbolism of retaining these laws and the message they send. Departmentalism adds a substantive reason-- repeal avoids the spectacle of even unsuccessful efforts at enforcement. But this case confirms that the conversation must be a legislative one, not a judicial one.

There is a property question to which I do not know the answer. Could the legislature or recorder do anything about these documents or their problematic provisions? Can the government amend long-standing deeds to remove objectionable covenants? Can it issue a new, superseding deed, stripped of the objectionable covenants, controlling the property going forward?

Posted by Howard Wasserman on September 2, 2018 at 04:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, September 01, 2018

Avoiding dueling universal injunctions

Judge Hanen of the Southern District of Texas* on Friday refused to preliminarily enjoin DACA, where such an injunction would have created a direct conflict with injunctions enjoining the Trump Administrations rescission of DACA. Although the court held that the states have standing and were likely to succeed on the merits (because DACA violates APA and the Take Care Clause), the balance of equities weighed against the injunction, as the injunction would undo the status quo by undoing rights and reliance interests that had attached to DACA recipients since 2012. So we again avoid the clash of injunctions and impossibly conflicting obligation only by a bit of restraint from one court.**

[*] Whose universal injunction in the DAPA litigation in 2015 was the starting point for the recent trend.

[**] Note the clash comes even if the injunction issued was particularized and non-universal. The existence of one universal injunction by definition collides with all future injunctions. A particularized injunction in this case would have forced the federal government to act inconsistent with the earlier universal injunctions prohibiting rescission.

In a separate order, Hanen certified the case for interlocutory review under § 1292(b), finding the validity of DACA is a novel and unique controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. This seems weird in two respects. First, while there is a controlling question of pure law within this order, the decision turned on the balancing of equities, an application issue that is not reviewable under § 1292(b). The court said that a Fifth Circuit declaration of DACA's validity would speed termination of the case, but it is not clear why, because that would not alter the purported balance of equities on which the district court denied relief, at least not at the preliminary injunction stage. I guess if the Fifth Circuit declares DACA invalid, the district court could summarily convert to a permanent injunction. But that assumes the Fifth Circuit takes on DACA directly and does not address the legal issue in context, saying only that DACA is likely invalid, but limiting the decision to the case's preliminary posture.

Second and in any event, certification was unnecessary to obtain review. A decision denying a preliminary injunction is immediately reviewable under § 1292(a)(1). Although the text of the statute only enumerates orders refusing to dissolve or modify an injunction as appealable, every circuit, including the Fifth, reads § (a)(1) to allow immediate review of the denial of the initial preliminary injunction. And § 1292(a)(1) appeals do not require leave of court and are not limited to controlling questions of law.

Update: Other conversations on the subject suggest that Hanen blew the procedure in another way. If he wanted to declare DACA invalid, tee-up the issue for appellate review, and avoid the chaos that would come with a preliminary injunction, he should have ordered the parties to file cross motions for summary judgment and issued a declaratory judgment. A D/J is a final judgment, appealable as such under § 1291. This stuff matters.

Posted by Howard Wasserman on September 1, 2018 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, August 21, 2018

Flipping constituional litigation

Here is a move that could shake-up our expectations in constitutional litigation. A group of Kentucky filed suit in the District of the District of Columbia, challenging HHS' grant of a waiver for Kentucky to change its Medicaid program; Kentucky intervened in that action as a defendant. At the same time, Kentucky sued the D.C. plaintiffs for a declaratory judgment of the validity of the state's new Medicaid rules. The district court dismissed on standing grounds, concluding that Kentucky had not shown an injury and that any injury arose from the result in the D.C. litigation, not from any conduct of the defendants. The court did not resolve defendants' 12(b)(6) and first-to-file arguments.

This is an aggressive move, allowing a state to preempt constitutional litigation by rights-holders by running to a preferred court either before or during the rights-holders' litigation. At the very least, it forces rights-holders into a two-front war. On this logic, nothing would stop a state from the following: Prosecution of X for violating a law, with X arguing in the prosecution that the law is invalid. State runs to a different court against X, seeking a declaration that the law is constitutionally valid.

Perhaps the benefit of resolving this case on standing, rather than something discretionary such as first-to-file, is to signal that states lack standing to sue over an anticipated injury caused by someone else's lawsuit.

Posted by Howard Wasserman on August 21, 2018 at 10:59 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, August 16, 2018

Masterpiece Cakeshop redux

Jack Phillips of Masterpiece Cakeshop has filed a federal civil action against the members of the Colorado Civil Rights Commission, challenging the constitutionality of a new threatened enforcement of the state's public-accommodations law. This case arises from his refusal to sell a cake with a blue exterior and pink interior to a lawyer (clearly doing this as a test case) celebrating her birthday and her male-to-female transition. The lawyer complained to the Civil Rights Commission; the Director of the Commission found probable cause to believe a violation occurred (sex and transgender status) and order edthe parties to mediation, but Phillips instead filed suit. Some thoughts after the jump.

• The parade-of-horribles comparison I thought of was a person requesting a cake that was white on the inside and black on the outside to celebrate his biracial identity or the biracial identity of his child, which conflicted with a baker's belief that "the fact that God separated the races shows that he did not intend for the races to mix."

• There is language in the Complaint about Colorado ignoring SCOTUS's decision in Masterpiece. But here is where judicial departmentalism kicks in. The judgment in Masterpiece (if there was one--the Court was cryptic about this) was that the Commission's sanction for refusing to bake the wedding cake violated the First Amendment. At best, that should have meant a reversal of the injunction the Commission entered against Phillips for refusing to bake that cake. That judgment does not preclude the Commission from pursuing a new case based on a new refusal to bake a different cake with a different message for a different customer. A government entity does not violate the judgment in a prior case by attempting to enforce the law against the same person on a new set of facts arising from a new transaction or occurrence.

As for the precedent of Masterpiece, I do not believe control the Commission' s actions, other than to the extent it does not want to lose in a court that is bound. Even than, that precedent does not squarely answer this case. The problem in the previous case was the purportedly anti-religious remarks by Commission members, which may not be present here; a majority of the Court did not hold that a baker enjoys a First Amendment opt-out from public accommodations laws.

• There is a Younger problem here. A government-initiated administrative enforcement action is an ongoing proceeding that triggers abstention. The question is whether a finding of probable cause commences that proceeding. It triggers a statutory conciliation process, including compulsory mediation, leading to an adversary proceeding if unsuccessful. It may depend on what the court defines as the proceeding--the conciliation element or the entire thing. In any event, the Complaint recognizes this, including allegations of bad faith by the Director in finding probable cause and a "rigged" process, given the make-up of the Commission. These seem designed to move the case into the Younger exceptions for bad faith or unusual circumstances, such as biased decisionmakers.

On the bad-faith point, this presents an additional way that judicial departmentalism pushes towards judicial supremacy. Bad faith for Younger purposes is defined as a prosecution undertaken without hope or expectation of securing a valid conviction. If a government official initiates an action to enforce a law in the face of SCOTUS precedent declaring that law constitutionally invalid, he has no realistic hope of securing a conviction--he knows he will lose the prosecution. So an attempt to pursue that prosecution, while consistent with his oath, may mean the target of the prosecution could seek to enjoin the prosecution even though pending and argue the bad-faith exception. I had not considered that possibility.

Posted by Howard Wasserman on August 16, 2018 at 11:04 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (16)

Wednesday, August 01, 2018

Ninth Circuit affirms less-than-universal injunction as to sanctuary-city funding

The Ninth Circuit on Thursday affirmed the injunction prohibiting DOJ from enforcing an executive order and regulations stripping federal law-enforcement funds from sanctuary cities, in an action brought by San Francisco and Santa Clara.

1) The case was justiciable, considering both standing and ripeness. The plaintiffs had standing because they had policies in place that, under the executive order, would be a basis for withholding funds. That the regs might not be enforced did not eliminate the injury; it was enough that the plaintiffs' interpretation of the regs was correct and could subject them to consequences or to having to change their policies. The action also was ripe. The court pointed to statements by various Trump Administration officials warning about enforcement, with California and its municipalities as an express target, as well as a history of federal grants conditioned on compliance with certain immigration laws. The ripeness point prompted a dissent. Focusing on the order's requirement that any federal action be "consistent with law," the dissent argued that the counties do not face any imminent threat of loss of funds because they have not shown an intent to violate § 1373 and the EO did not order DOJ to enforce the funding regulations in a manner inconsistent with the law.

2) The court affirmed the injunction, but limited it to prohibiting enforcement against the plaintiffs and the State of California. While rejecting DOJ's argument that universal injunctions are per se improper, the court found that the plaintiffs did not offer sufficient evidence of an effect beyond themselves and the State. The court's analysis was inexact but it did hit on a situation in which an injunction should protect beyond the named plaintiffs. Santa Clara and San Francisco offered evidence that their law-enforcement budgets depend on money from the State, which gets some of its money from the DOJ grant program; complete relief for the plaintiff counties thus depended on the regs not being enforced against California.

But while appropriate, this should be a narrow and unique exception to particularity. And the court showed it did not recognize that narrowness when it remanded for the district court to allow the plaintiffs to offer evidence of a universal effect. Although not a party, California was a unique non-party because some of the money it would get from DOJ (and which it would lose under the regs) would be passed to the plaintiffs. No other sanctuary jurisdiction would, if stripped of funds, have the same effect on the plaintiffs' budgets; therefore, stripping funds from no other jurisdiction could render their relief less than complete. For example, if San Francisco does not get money from the State of Oregon or the City of Boston, then enforcement of the funding regs against those cities does not deny San Francisco complete relief.

Posted by Howard Wasserman on August 1, 2018 at 04:35 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Saturday, July 28, 2018

Judge Leinenweber loves him some universal injunctions

Judge Leinenweber of the Northern District of Illinois made permanent his injunction in City of Chicago v. Sessions, prohibiting DOJ from enforcing regulations stripping federal law-enforcement funds from sanctuary jurisdictions. The new opinion mostly makes permanent the preliminary injunction entered last year and affirmed on the merits on appeal. The new element, as Ilya Somin explains, is the declaration of invalidity of a rule prohibiting jurisdictions from restricting communications with DHS and ICE, relying on Murphy v. NCAA (the NJ gambling case) for the proposition that federal law cannot restrict state or local lawmaking in this way.

The other issue is the scope of the injunction. The preliminary injunction was universal and accompanied by the most detailed judicial justification for universal injunction, but the question of scope is pending before the en banc Seventh Circuit.* Leinenweber made the permanent injunction universal (he continues to use "nationwide"), but stayed the universal scope pending the Seventh Circuit decision (so, for the moment, the injunction prohibits enforcement of the regs only as to Chicago). He recognized the conflict over universal injunctions, pointing to Justice Thomas' opinion in Trump v. Hawaii, as well as the scholarly work of Samuel Bray against universality and Amanda Frost in defense of it. The novelty of the question and the fact of the Seventh Circuit stay of the scope of the preliminary injunction satisfied the first prong (likelihood of success) of the stay analysis and none of the other prongs outweighed that.

[*] The Seventh Circuit panel affirmed the scope of the injunction, over a strong dissent on the scope question from Judge Manion. The court granted en banc review on universality.

Supporters of universal injunctions, including Judge Leinenweber and Prof. Frost, recognize that they should be rare and the exception rather than the rule. Even accepting (as I do not) that universal injunctions are sometimes proper, they should be limited to cases in which enforcement of a particularized injunction would be difficult--it could be easily circumvented,* individual plaintiffs face barriers to bringing individual cases, a particularized injunction leaves the plaintiff with less-than-complete relief, other mechanisms (class certification, organizational standing) would be ineffective. The paradigm would be Hawaii and the travel ban, which presented some unique problems, in that affected persons were all over the world and the plaintiff states could not identify all affected potential students or scholars.

[*] Think Texas and the DAPA injunction, because DAPA recipients could move to Texas.

But Chicago and sanctuary-city funding does not provide the appropriate case, something even Frost seems to recognize. An injunction particularized to Chicago remedies the constitutional violation as to Chicago (the invalid withdrawal of funds) and leaves Chicago with complete relief (it gets its money). Nothing that DOJ might do as to another city violates Chicago's rights or limits its relief, so there is no need for the injunction to go beyond Chicago.

This case shows why efforts to limit universality to unique cases fall flat. If a universal injunction is appropriate here, it is appropriate in every case challenging the constitutional validity of every federal law; there is no reason not to make all injunctions universal, something Leinenweber acknowledges is improper.

Posted by Howard Wasserman on July 28, 2018 at 11:23 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, July 19, 2018

Massachusetts fears Justice Kavanaugh

Following on this post: Josh Blackman writes that Massachusetts is moving to repeal its criminal prohibitions on abortion, adultery, and fornication. Democratic legislators explained that the move anticipated the Court overruling Roe and other cases, after which those laws would become enforceable.

Posted by Howard Wasserman on July 19, 2018 at 01:56 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Wednesday, July 18, 2018

Clopton on universal injunctions

At the Take Care Blog, Zachary Clopton (Cornell) argues that history, structure, and precedent "do not provide a once-size-fits-all answer" to the question of the propriety of universal injunction. Clopton's basic argument is that other doctrines, notably nonmutual issue preclusion and full faith and credit (and, I would add, precedent), protect non-parties. There is thus no blanket reason not to allow injunctions to do the same work, especially since all are grounded in policy concerns.

The difference is how hard we make non-parties work to gain those protections. Precedent and preclusion requires affirmative steps by the new party--file her own lawsuit and ask the second court to make use of the prior judgment or precedent. A universal injunction requires the non-party to do nothing more than request the first court to enforce the injunction and, perhaps, to hold the government in contempt. For reasons linked to Article III and the scope of constitutional claims, I favor requiring those non-parties to take those extra steps.

Posted by Howard Wasserman on July 18, 2018 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, July 17, 2018

The return of Skelly Oil and the Well Pleaded Complaint

MGM Resorts and affiliated companies, owner of the Mandalay Bay Resort and the adjacent fairgrounds at which Stephen Paddock killed 58 people and injured 500 others in 2017, has filed two federal declaratory judgment actions (one in California, one in Nevada), arguing that they are not liable to the victims of the shooting. The basis for the D/J action is the Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act) of 2002, a post-9/11 law designed to protect businesses from liability for acts of terrorism. Hundreds of injured or dead are named as individual defendants (the list of parties takes up the bulk of both complaints). The Nevada action is against Nevada citizens and asserts federal-question jurisdiction; the California action is against California citizens and asserts federal-question and diversity jurisdiction (MGM and its affiliates are Nevada and Delaware citizens). One lawyer for many  victims was typically calm and measured in describing this tactic as a "blatant display of judge shopping," verging on unethical, outrageous, and "really sad."

My thoughts, naturally, turned to federal jurisdiction. The news reports read as if MGM sought a declaration of non-liability based on federal law as against state negligence claims. If so, there would not have been federal-question jurisdiction under Skelly Oil, which provides that an anticipatory D/J action does not arise under when the underlying enforcement action would be a state-law claim with a federal defense that would not satisfy the Well Pleaded Complaint Rule. A D/J action arises under only if the hypothetical enforcement action would arise under, because the well-pleaded complaint asserts a claim in which the right of action and rule of decision are created by federal law. This means the California action could go forward based only on diversity jurisdiction but not federal-question jurisdiction, and the Nevada action must be dismissed..

Looking at the pleadings and the SAFETY Act, however, I think there is jurisdiction. MGM's argument seems to be as follows. Section 442 provides a federal cause action, with exclusive federal jurisdiction, "for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act." The law of the state in which the acts occurred provides the rule of decision, unless inconsistent or preempted by federal law. MGM's argument, based on the statute and implementing regulations, is that this was an act of terrorism and because MGM hired a vendor to provide security services, any claim based on failure of those security efforts can be brought only under federal law and in federal court,  and can only be brought against the seller of services and not against it as the buyer. I think that solves the jurisdictional problem. The enforcement action would arise under federal law in federal court because federal law provides the right of action in § 442(a)(1) and federalized state law as rule of decision, so the mirror D/J action also arises under. I do not know whether the argument works under the statute, but that is a matter of merits, not jurisdiction.

One more jurisdictional puzzle in the California complaint. The pleading asserts supplemental jurisdiction with respect to claims against any victim/defendants whose claims would be for less than the jurisdictional minimum. But § 1367(b) should preclude supplemental jurisdiction over claims between multiple plaintiffs and multiple defendants, because the first clause of (b) precludes supplemental jurisdiction over claims by plaintiffs against persons made party under Rule 20. Even accounting for the upside-down posture of the case, the D/J action involves claims against multiple defendants, all joined under Rule 20, which should prohibit aggregating amount in controversy this way.

Posted by Howard Wasserman on July 17, 2018 at 04:45 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Fourth Circuit on prosecutorial immunity

Prosecutorial immunity presents a problem. Immunity applies to all functions intimately associated with the judicial phase of the criminal-justice process, broadly defined. And it includes general office-wide policies relating to the judicial process, even if not to a specific prosecution. Courts have sought to draw a line between immune prosecutorial functions and non-immune administrative functions, namely employment decisions. But that distinction could collapse, because employment decisions may have some connection to a judicial proceeding or to judicial proceedings generally--for example, how to staff a case is an employment decision that implicates a prosecution and involves discretionary legal judgment. One way to avoid that collapse is to ask whether the § 1983 action requires that court to reconsider an underlying investigation or prosecution, a question that functionally turns on the identity of the plaintiff--immunity applies when the suit is brought by the target of the underlying prosecution, but it does not apply when the suit is brought by a non-target, such as an employee.

To take a simple example: Imagine the DA refuses to assign an African-American line prosecutor to a case because he believes the white prosecutor will be tougher on the African-American criminal defendant and push for a harsher sentence. If the defendant brings some sort of wrongful prosecution claim, immunity applies. If the passed-over line prosecutor brings a race-discrimination claim, immunity does not apply.

But the Fourth Circuit declined to accept that distinction. The plaintiff was a police officer who alleged that the state's attorney 1) subjected him to racial harassment by (gratuitously) reading aloud at a trial-preparation meeting letters and statements (that would be used as evidence) containing racial epithets and 2) retaliated against him for complaining about that conduct by refusing to call that officer as a witness at any future proceedings. The court held that trial prep and decisions about who to call as witness are immune prosecutorial functions, as they are intimately connected to the judicial phase of the criminal process, done while the attorney was acting as an advocate for the state. That this occurred in the employment context was irrelevant--"[t]hat a judgment about witness credibility or which cases to try has negative employment consequences - even readily foreseeable ones - does not change the underlying nature of that judgment."

This reasoning could broaden prosecutorial immunity in a way that swallows many employment claims. If discussing evidence and deciding what witnesses to call is prosecutorial, then it seems that an attorney could: sprinkle his trial-prep discussions with racial epithets; decide never to call any African-American police officer as a witness; decide never to prosecute a case in which the arresting officer is African-American; decide never to have an African-American police officer in the trial-prep meeting; decide never to assign a female attorney to work his cases or agree to work with a female attorney on his cases. There is no difference between creating a racially hostile environment and treating someone more poorly because of race or sex or whatever; all (if proved) violate Title VII and the Fourteenth Amendment. If they occur in the judicial phase, immunity should apply.

The court tried to avoid that end, insisting "it is only 'a certain kind of administrative obligation - a kind that itself is directly connected with the conduct of a trial.'" And "even in that context, if a prosecutor's alleged conduct cannot be connected to discretionary judgments about which witnesses to call and which cases to prosecute, then absolute immunity will not apply." But it is easy to connect employment acts to those immune discretionary judgments. The state's attorney can decide not to prosecute a case because the complaining officer is African-American or because the line prosecutor working the case is a woman. Either involves protected discretionary judgments. And the point of absolute immunity is that courts cannot look beneath the function and examine motive--if it is a prosecutorial decision (reviewing evidence, calling witnesses, pursuing cases), it is immune, even if the function is performed for no reason other than racial animus.

Posted by Howard Wasserman on July 17, 2018 at 01:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, July 13, 2018

Two interesting civil rights puzzles (Updated)

No connection, other than being news stories while on a driving vacation.

1) A Cook County Parks District police officer resigned when video emerged of a drunk man harassing a woman renting a covered picnic area, while the officer watched and did nothing, despite requests from the woman. The drunk man, who was arrested when other officers arrived, was screaming about the woman not being American and should not have worn a Puerto Rico t-shirt in America.

The fun puzzle is imagining the woman's lawsuit against the officer (putting aside that she suffered minimal or nominal damages and a lawsuit may not be worth the candle). Under DeShaney, the officer cannot be liable under due process for failing to act to stop the drunk man or otherwise protect the woman. She would have to bring her claim either under equal protection, that the officer failed to act because she is Puerto Rican, or free speech, that the officer failed to act because he disagreed with the message on her t-shirt or, perhaps, because he agreed with and wanted to support the drunk man's anti-Puerto Rico speech directed against her.

Update: Erica Goldberg argues that much of what the drunk man did was pure speech, so the officer would have violated his First Amendment rights had he intervened sooner. I interpreted the video as being more in-your-face and threatening (and thus less purely protected expression), giving the officer leeway to step-in sooner than he did. But I see Erica's point that this can be read as obnoxious counter-speech.

2) Democratic-controlled states, anticipating overruling of Roe/Casey, are moving to update and enact protective abortion laws. Many progressive states still have on the books the restrictive abortion laws from the early 1970s that became unenforceable following Roe.

This shows the downstream effects of the reality of constitutional litigation. Roe declared invalid Texas' blanket ban and enjoined Texas from enforcing that law; it not remove the law from the Texas code. It also did not repeal the laws of any other state (nor did it enjoin other states from enforcing their laws, although most states declined to enforce, knowing they would lose when courts applied Roe. That's the idea of judicial departmentalism).

Those laws remained on the books, unenforced, a vestige of a past constitutional regime and a past policy position. States lack any incentive to go through their books and remove or update those laws, assuming that the past constitutional regime does not return and the laws remain unenforceable. Facing the return of that regime of no federal constitutional protection for terminating a pregnancy, meaning plenary legislative authority on the subject, states must legislate their preferred abortion policies. For states wanting to maintain liberal reproductive freedom, that means combing the books and eliminating old laws that no longer reflect current policies.

Posted by Howard Wasserman on July 13, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Thursday, July 12, 2018

JOTWELL: Wasserman on Mitchell on writs of erasure

I have the new Courts Law essay, reviewing Jonathan Mitchell (VAP at Stanford), The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming), which debunks the idea that courts "invalidate" constitutionally defective laws, since the laws do not disappear from the U.S. Code. Mitchell's article has lent a welcome new angle to my arguments against universal injunctions and in favor of judicial departmentalism.

Posted by Howard Wasserman on July 12, 2018 at 09:52 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Wednesday, June 27, 2018

Enjoining family separation

A judge in the Southern District of California certified a Rule 23(b)(2) class of "[a]ll adult parents who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child" and issuing a classwide preliminary injunction  prohibiting DHS from "detaining Class Members in DHS custody without and apart from their minor children," to release minor children from detention, and to take steps to reunite parents and children within 30 days. The court found that plaintiffs are likely to succeed on a substantive due process claim, as the zero-tolerance policies and their effects "shock the conscience.

The court followed appropriate procedures. It created a class that is a unique party to the case, then issuing an injunction that protects that party. This is not the sort of universal injunction Justice Thomas and others are criticizing, because it protects only parties and the parties are defined. The class is broad, but it is manageable and seems consistent with the nationwide class and classwide injunction allowed in Califano.

I would guess that the court (or the Ninth Circuit) is going to stay the injunction, at least the mandatory portions that give the government 30 days to release detained children.

Posted by Howard Wasserman on June 27, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, June 26, 2018

(SCOTUS Term) Preliminary Adjudication

Perhaps recognizing how many constitutional cases are coming to it on immediate interlocutory review of the grant or denial of preliminary injunctions, the Court has been couching its constitutional holdings in that preliminary posture. In NIFLA, the majority held that "petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment." In Hawaii, the majority concluded that "plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim."

In both, the Court writes as if its constitutional decision was only for purposes of deciding whether to halt enforcement of the challenged law pendente lite. And in both the Court remands for further proceedings, seeming to suggest that this is not the final word on the constitutional validity of the challenged laws and that there may be further arguments to be made during further proceedings on remand.

This seems like something new. Significant constitutional cases have come to the Court on review of preliminary injunctions, at least where issued following a full and detailed hearing (if not a full "trial"). The Court's determination of constitutional invalidity, as part of the likelihood-of-success prong, was seen as the last word on the constitutional merits in that case, requiring only an after-notice conversion to a permanent injunction on remand. And maybe that is what the Court understands as further proceedings for these cases. But putting this in the language of the preliminary-injunction standard hints at a more interlocutory decision and the expectation that more detailed proceedings, including a full trial on the merits, may be required.

Posted by Howard Wasserman on June 26, 2018 at 06:05 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

(SCOTUS Term) More on universal injunctions (Updated)

I agree with Stephen's post about Gill's foreshadowing of the demise of the universal injunction. Several additional points.

First, the standing analysis in Gill was tied to the nature of the right and the theory of the violation. We see that not only in the Chief's majority opinion, but in Kagan's concurring opinion guiding these and future plaintiffs on how to frame this as a First Amendment claim for which an all-state injunction may be appropriate. But this emphasizes the unavoidable and inherent connection between standing and merits, because the nature of the injury (and thus the permissible scope of the remedy) depends on the substantive right asserted. It is about time we follow Willie Fletcher on this.

Second, an all-state injunction ordering redistricting in a case such as Gill would not be universal, at least not as a formal matter. The injunction would have an unavoidable spillover effect to the benefit of non-parties--the government cannot redristrict to protect only the plaintiff. But the injunction still would protect only the plaintiffs in the case and only the plaintiffs would be able to enforce the injunction.

Third, if Stephen is correct that the next chance to consider universal injunctions is the stay request in Chicago v. Sessions, the result on the issue will be obvious because the universal injunction cannot be justified in Chicago. There are arguments that a universal injunction could be appropriate for the travel ban, given the large number of affected persons, their geographic dispersal, how easily they can move, and the use of third-party standing that made it impossible to identify specific injured persons (for example, Hawaii could not identify which people from the affected countries might want to travel to Hawaii to study or teach). But no such remedy is necessary in Chicago, because each city suffers its own injury by the denial of funding to it and each can bring its own lawsuit.

Update: A good post from Michael Dorf arguing that Thomas' critique of universal injunction is "ridiculous" because it focuses on antiquarian ideas of historic equity. It does not grapple with genuine arguments in favor of universality (conservation of resources) or the obvious solutions, such as Rule 23(b)(2) class actions.

Posted by Howard Wasserman on June 26, 2018 at 02:26 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

SCOTUS Term: Bad News for the Universal Injunction

To follow up on Howard's post: one understated result of this morning’s travel-ban decision may be to hasten the demise of the universal injunction.

Ordinary injunctions protect the parties who obtain them. That can include class members, if the case involves a plaintiff class. But in recent years,  district courts have started to regularly award what Howard describes as "universal injunctions" (sometimes called "nationwide injunctions," or even "cosmic injunctions"). These binding orders regulate a defendant’s conduct even as to people who’ve never appeared in court—and, more importantly, who aren’t legally represented by those who did appear.

The travel-ban case involved just such an injunction. But because of the way it was brought, with the State of Hawaii able to advocate for the interests of various other persons, it would have made for a messy analysis. By disposing of the case on the merits, the Court ended up avoiding any detailed discussion of the injunction or its scope. (Justice Thomas discussed it at length in his concurrence—citing excellent work on the topic by Sam Bray, among others. And Justices Sotomayor and Ginsburg would have upheld the injunction, though I agree with Howard that the relevant footnote doesn't really explain why.)

So the next opportunity for the Court to reach the issue may be the government’s stay application in the sanctuary-city case. There, the City of Chicago sought and obtained an order forbidding the policy’s application to every locality in the United States. But without an order certifying a class, Chicago ordinarily doesn’t have the right to act as a legal representative for other cities—some of which might like the policy, or which simply might be indifferent. Chicago can sue to protect its own interests, but not to vindicate an abstract position on whether a policy is lawful, much less to obtain binding court orders about (say) the conditions on federal funding for Tampa. So the government has pressed the issue, asking the Court to stay only that portion of the sanctuary-city order which applies to other cities.

Which the Court might well do. As others have noted, the Chief Justice's opinion for the Court in the Gill v. Whitford redistricting case sounded plenty of relevant notes, in explaining why the Gill plaintiffs couldn't sue to reshape the state's legislative districts as a whole:

The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. In those malapportionment cases, the only way to vindicate an individual plaintiff ’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.” Reynolds, 377 U. S., at 561; see, e.g., Moss v. Burkhart, 220 F. Supp. 149, 156–160 (WD Okla. 1963) (directing the county-by-county reapportionment of the Oklahoma Legislature), aff ’d sub nom. Williams v. Moss, 378 U. S. 558 (1964) (per curiam).

Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted. That harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district. Remedying the individual voter’s harm, therefore, does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district—so that the voter may be unpacked or uncracked, as the case may be. Cf. Alabama Legislative Black Caucus, 575 U. S., at ___ (slip op., at 7). This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis, 518 U. S., at 357.

The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III standing. On the facts of this case, the plaintiffs may not rely on “the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” Lance, 549 U. S., at 442. A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. And the citizen’s abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable “general interest common to all members of the public.” Ex parte Lévitt, 302 U. S. 633, 634 (1937) (per curiam).

What's more, the Court rested this discussion on constitutional grounds:

Our power as judges to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff ’s particular claim of legal right.

If the Court really is committed to resolving particular claims of legal right, with remedies targeted at the plaintiff's own injuries, then it's hard to see it upholding the universal injunction.

[UPDATE 6/27: Sam Bray summarizes new developments on the universal-injunction front. Among them, the Seventh Circuit has granted the government's stay request in the Chicago case, meaning that the stay application to the Supreme Court is now moot. (He also notes that the Seventh Circuit "refers to the injunction as 'STAYED as to geographic areas in the United States beyond the City of Chicago' [emphasis added]; footnote 1 of Justice Thomas's opinion is more precise, distinguishing places and parties.") ]

Posted by Stephen Sachs on June 26, 2018 at 01:34 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Scholarship in the Courts | Permalink | Comments (1)

(SCOTUS Term) Thomas adopts universality, rejects injunctions

I may have more to say about Trump v. Hawaii later, but I wanted to start with Justice Thomas' concurring concurring opinion on scope-of-injunction. (The majority, having rejected the merits of the plaintiffs' argument, says it is unnecessary to reach that issue).

Thomas begins with a footnote adopting "universal" as the "more precise" term because the injunctions are distinctive because thet "prohibit the government from enforcing a policy with respect to anyone, including non-parties--not because they have wide geographic breadth." (Unfortunately, Thomas does not cite me for the nomenclature point). Instead, he relies heavily on Sam Bray's discussion of the history of equity and universal injunctions. He then rejects scholarly counter-arguments--protecting non-parties and constraining the executive--as not justified by historical limits on equitable and judicial power. He closes with "[U]niversal injunctions are legall and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so."

[Update: I should have included Justice Sotomayor's brief, conclusory discussion. She argues that given the nature of the Establishment Clause violation, a universal injunction was necessary to accord complete relief to the plaintiffs and was dictated by the extent of the violation established.]

Posted by Howard Wasserman on June 26, 2018 at 12:07 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Sunday, June 24, 2018

Universal injunctions in other countries

An alert reader emailed this photo, taken at a construction site in London.

Image1

I found the court order. I cannot find details about the case or the separate injunction referenced in the order. [Update: The referenced order is here] The "Seventh Defendant" mentioned is "PERSONS UNKNOWN entering or remaining on the Claimants' property without the Claimants' license or consent." The posted notice constitutes notice of the order and the injunction itself. I think that category was intended either to create a defendant class (only one named defendant was represented) or to constitute a group of John Doe defendants. So it is not quite universal, as there seems to be an attempt to expand the scope of the case to expand the injunction.

Either way, I am not sure it would fly in the U.S. to subject a broad number of unknown people to contempt without being named or well-represented in the action.

Posted by Howard Wasserman on June 24, 2018 at 11:27 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (5)

Friday, June 22, 2018

(SCOTUS Term): Marbury and appellate jurisdiction

Marbury v. Madison made quite the appearance in Friday's decision in Ortiz v. United States, where the Court held that there was no statutory or constitutional violation in having a military officer serve as a judge on a service's Court of Criminal Appeals (which reviews courts martial decisions) while also holding a position as a presidentially-appointed-Senate-confirmed judge on the Court of Military Commission Review.* But the Court split over whether it had Article III jurisdiction to review decisions from the non-Article III Court of Appeals for the Armed Forces (the top court in the military-justice system), an issue on which the Court granted argument time to Aditya Bamzai (U Va.) as amicus.

[*] Ortiz was consolidated with Cox v. United States and Dalmazzi v. United States the latter and argued by our own Steve Vladeck. The Court DIG'd both cases, which also raised statutory issues the Court believed were unnecessary to reach.

Justice Kagan wrote for seven that the Court had jurisdiction; Justice Thomas joined that opinion but added a typically idiosyncratic concurrence; and Justice Alito dissented for himself and Justice Gorsuch. And it was all about Marbury, which both the majority and dissent discuss at length (while dropping comments that, of course, everyone knows the details of that case). Marbury establishes that SCOTUS' original jurisdiction is limited to the cases enumerated in Article III and that its appellate jurisdiction is limited to reviewing, revising, and correcting proceedings initiated in a another court, not to creating a judicial case.  Everyone agreed this was not (and could not be) an exercise of original jurisdiction. The point of departure is whether SCOTUS could exercise appellate jurisdiction over a decision of CAAF and the military-justice system.

The majority held that it could. The military-justice system, including CAAF, was judicial in character, even though located in the executive branch not Article III. Each level in that system decides cases in accordance with the Constitution and a body of federal law, wields jurisdiction that overlaps with that of state and federal courts, accords procedural protections, and produces judgments that read the same as a judgment from any tribunal. SCOTUS was not limited to reviewing decisions of Article III courts, as shown by its appellate jurisdiction over decisions of state courts, territorial courts, and District of Columbia courts; the latter two judicial systems have been grouped with military tribunals, all as resting on unique congressional powers. And CAAF's location in Article II did not make it executive, because a decision by a judicial tribunal located in the executive branch was different than the individual executive decision of James Madison not to serve Marbury's commission.

Justice Alito, largely adopting Bamzai's position, begins by arguing that the executive (non-judicial) nature of Madison's actions would not have changed if he had held a formal hearing or established procedural protections prior to deciding not to issue the commission. A decision by an executive is an executive decision, no matter its form. Only an Article III body with Article III judges can exercise federal judicial power; executive-branch officers cannot do so, so they cannot create and decide cases that can be reviewed in an exercise of SCOTUS' appellate jurisdiction. Alito distinguished territorial and D.C. courts, because they exercise the judicial authority of that territory or D.C.; this is different than exercising the judicial authority of the United States, which only can be done by an Article III court.

The dispute leaves open whether SCOTUS could review decisions by modern administrative agencies (something Congress has never purported to do). The majority disclaimed this decision speaking in any way to that issue, emphasizing its foundation on the unique constitutional and historic foundations of courts martial and of the connection to territorial and D.C. courts. Alito rejects this as "halfhearted," insisting there is no relevant distinction  for purposes of SCOTUS' appellate jurisdiction between the military-justice system and civilian agencies. In Alito's view, all are executive and cannot exercise judicial power. But if one can somehow be judicial to allow for SCOTUS review, so can the other.

All the opinions are good reads; Kagan is her breezy self, with references to General Burnside's "notorious facial hair." I am going to add this discussion to Fed Courts--I just have to decide whether to include it at the top with my discussion of SCOTUS jurisdiction or later with discussion of non-Article III jurisdiction.

Posted by Howard Wasserman on June 22, 2018 at 02:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 21, 2018

SCOTUS Term: Finding the Law, Abroad and at Home

Thanks to Howard for the invitation to blog! Amid the morning’s excitement over new opinions, I’d like to add a few thoughts to Cassandra Burke Robertson’s excellent post last week on Animal Science Products v. Heibei Welcome Pharmaceuticals. Animal Science is a sleepy case in a mostly sleepy Term, but it brings up some deep issues, much deeper than the Supreme Court usually faces: what is the law, and how do judges find it?

Animal Science involved a price-fixing claim about Chinese exports of Vitamin C. The defendants said they’d been legally required to fix their prices, and China’s Ministry of Commerce agreed. To the Second Circuit, this was enough: so long as the Ministry’s position was reasonable, it was conclusive. (How could an American court instruct China’s government about Chinese law?) But to a unanimous Court, per Justice Ginsburg, the Ministry’s statement deserved only “respectful consideration”: it wasn’t binding, and U.S. courts would have to make their own judgments.

That all makes sense on the surface, but it raises at least three more fundamental concerns. Are legal questions like these all that different from ordinary questions of fact? Who do we trust to answer them? And what actually makes the answers right? When it comes to foreign law, issues like these aren’t always obvious—suggesting that the answers may not be so easy closer to home.


1. Legal questions and questions of fact. As the Court points out in Animal Science, foreign laws used to be treated as facts—they had to be pleaded and “proved as facts,” subject to rules of evidence and based on expert testimony or authenticated documents. As it turns out, these same rules applied to U.S. states—which were just as foreign to one another, except when the Constitution or Congress intervened, and which therefore needed proof of each other’s laws. (As I’ve argued before, the Full Faith and Credit Clause was mostly about these evidentiary questions: it helped establish what a particular state had said, and left it up to Congress to decide when other states should listen.) Sometimes even a state’s own laws got the factual treatment: courts could take judicial notice of public laws, but private bills were again matters for pleading and proof, as Chief Justice Marshall described:

“The public laws of a state may without question be read in this court; and the exercise of any authority which they contain, may be deduced historically from them: but private laws, and special proceedings of the character spoken of, are governed by a different rule. They are matters of fact, to be proved as such in the ordinary manner.”

Today we do things very differently. Federal and state courts take judicial notice of all kinds of American laws, and FRCP 44.1 and various state equivalents let them do the same for foreign ones. But we haven’t eliminated the basic problem of proving the law. Knowing that judges should answer these questions on their own—without simply outsourcing to juries, rules of evidence, or Ministry statements—doesn’t help us find any particular answers. If we need to know, say, whether French law allows extrinsic evidence of the contracting parties’ intent, should we look to translations of the statute book? To treatises and journal articles? To testimony by experts? And which translations, treatises, or experts should we trust?

2. Who do we trust? Giving only “respectful consideration” to the Ministry suggests that we should be sparing with our trust—making an all-things-considered judgment, looking at all the potential legal sources at once. But according to the Court, at least one kind of source gets special treatment. When a U.S. state court rules on an issue of state law, that ruling doesn’t just get “respectful consideration”; it’s considered as “binding on the federal courts.”

Why so? It’s easy to explain why federal courts might defer to Ohio courts on Ohio law, just as the Second Circuit would usually defer to the Sixth—they see more Ohio cases, so they probably know what they’re doing. But that doesn’t explain why the decisions would be binding, as opposed to just getting  extra-respectful consideration.

Maybe there’s something special about common-law courts. Maybe we might say, with Hale, that the decisions of our courts might be “less than a Law, yet they are a greater Evidence thereof than the Opinion of any private Persons, as such, whatsoever.” (When it came to the construction of “local statutes or local usages,” Justice Story in Swift v. Tyson would have agreed.) But that’s very different from claiming, as Justice Holmes later did, that whenever a state creates a supreme court it’s really creating a junior-varsity legislature, “as clearly as if it had said it in express words.” Some states might want their courts to establish the law of the state, but others might not. Georgia might want its courts to do general common law; Louisiana might want its courts to do its own civil-law thing; Canada, were it admitted as a state (as the Articles of Confederation once offered), might have its own apologetically polite take on the separation of powers. And if a legal system turns out to be very different from ours—say, with a complex network of informal councils and regional magistracies—we might have no idea which entities even count as its courts, let alone how much “respectful consideration” they’re supposed to be getting.

As I note in a draft paper on Finding Law, that’s one of the core problems with the Court’s notorious decision in Erie Railroad Co. v. Tompkins. Instead of looking to a state’s law to learn about its courts, Justice Brandeis did precisely the opposite—assuming, for bad theoretical reasons, that the law of a state is what the state courts say it is, because that’s just what courts get to do. But American courts don’t establish Chinese law when they decide cases like Animal Science. And they don’t necessarily establish American law when they decide their other cases, either. The powers of courts aren’t facts of nature, but society-specific questions on which different legal systems can disagree.

3. What makes the answers right? If courts can sometimes get the law wrong, what does it mean to get it right? How can we disbelieve the Chinese government about Chinese law, if Chinese law is just whatever the Chinese government actually does?

As Asher Steinberg points out in the comments, in some societies (like Venezuela or the former Soviet Union), government officials don’t always adhere to formal legal sources. Maybe these particular defendants’ hands were forced by Chinese law; but maybe the Ministry officials just issued them orders, the statute-books be damned. If that’s what the officials did, and if law depends on what officials do, then maybe their secret commands really were the law. (Here Steinberg invokes a great paper by Mikołaj Barczentewicz, to which Will Baude and I are currently at work on a reply.)

But law is more than what legal officials do. If the defense in the case were just ordinary duress, it wouldn’t matter whether the threats were backed by legal force (or whether, say, Al Capone had told them to fix prices for Vitamin C). Instead, the defense cited “principles of international comity,” which we usually extend to foreign governments as they’re legally constituted, and not to rogue officials on a frolic of their own. If the officials were supposed to be able to order price-fixing, under some applicable statute or common-law doctrine, then it wouldn’t matter so much if their order were secret or open. But if not—if the officials were departing from what everyone else in the Chinese system (judges, experts, law schools, and so on) would describe as Chinese law—then it’s hard to say that what they were doing was really lawful. That’s why we speak of places like the USSR as having had problems with the rule of law: because in those societies, the law wasn’t always what ruled. As far as diplomacy goes, we might want to respect official actions merely under color of law, just to avoid annoying the officials with whose governments we negotiate. Yet we still shouldn’t confuse official actions with the law—either abroad or at home.

Posted by Stephen Sachs on June 21, 2018 at 12:38 PM in 2018 End of Term, Civil Procedure, International Law, Legal Theory | Permalink | Comments (4)

(SCOTUS Term): Trusting adjudicators on remand

The Court on Thursday decided in Lucia v. SEC (link corrected) that SEC ALJs were officers of the United States rather than employees and that the appointment of ALJ's by SEC staff (rather than the SEC itself) violated the Appointments Clause. Justice Kagan wrote for herself, the Chief, Kennedy, Thomas, Alito, and Gorsuch. Thomas concurred, with Gorsuch. Breyer concurred in the judgment in part, agreeing that the ALJ in this case was not properly appointed, but for statutory rather than constitutional reasons. Sotomayor dissented on the constitutional question, joined by Ginsburg.

I want to focus on the issue of remedy in the case. The Court remands for a new hearing on the charges against Lucia (involving alleged deception of prospective clients). But it insists that the new hearing cannot be before the same ALJ; it must be before a different (properly appointed) ALJ or the SEC itself. The original ALJ "has already both heard Lucia's case and issued an initial decision on the merits. He cannot be expected to consider the matter as though he had not adjudicated it before." Appointments Clause remedies are intended to incentivize parties to bring Appointments Clause challenges; a party has no incentive to bring the challenge if the remedy is a new hearing before the same adjudicator, properly appointed. Because there was no suggestion the ALJ erred on the merits, he can be expected to reach the same result from hearing the same case. Breyer dissented on this point (and Ginsburg and Sotomayor joined that portion of his opinion). He compared reversal on appeal, where the same judge typically rehears the case on remand. And because this reversal was on a "technical constitutional question, and the reversal implies no criticism at all of the original judge or his ability to conduct the new proceedings," neither due process nor the structural purposes of the Appointments Clause would be violated by the same ALJ rehearing the case.

The competing approaches reflect a paradox. For Kagan, the fact that the judge was not criticized or corrected on the merits shows that he cannot be trusted to hear the case anew, because his views on the merits will not have changed and no new or different evidence or arguments on the merits cause him to change those views. Implicitly, a decision criticizing the original decision or requiring something new forces him to reconsider those merits, whether to correct the original error or because the new information is convincing. Breyer's approach, on the other hand, presumes that a judge criticized on the merits might be put-off by the reversal (lower-court judges do not believe they were "wrong" even though a reviewing court disagreed with their decision) and more dug-in to his original position. If we trust that judge rehear that case on remand, we should trust a judge in this situation.*

[*] Marcus, Redish, Sherman, and Pfander, the Civ Pro book I previously used, included in the Discovery chapter a defamation action against Diana Ross by a former employee. The district court had dismissed the case on 12(b)(6), but the Second Circuit had reversed. The case back before the same district judge in discovery, every discovery decision went against the plaintiff and in favor of Ross, which can be seen as at least influenced by the judge's previously established views on the merits.

Kagan's approach raises the question of what other "structural" errors might be similar to an appointments problem as to require rehearing by a different judge. Denial of counsel comes to mind, although the assumption is that proper counsel will present evidence and arguments that the pro se party failed to present, changing what is available on the merits and requiring the judge to think about the merits differently. Another possibility is routine shackling in Sanchez-Gomez; if the reviewing court says this defendant should not have been shackled, it does not criticize the trial judge on the merits of any decision she made against the defendant, so that judge would be expected to reach all the same judgments.

Posted by Howard Wasserman on June 21, 2018 at 12:11 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, June 20, 2018

Mootness, enforcement, and particularized injunctions

The mootness analysis in this Eleventh Circuit decision illustrates the importance of focusing on the particularized nature of litigation and remedies, including injunctions. This was an action against Hooter's by Haynes, a visually impaired plaintiff, alleging that the incompatibility of its website with certain software violated the ADA. Hooter's settled a separate lawsuit brought by Gomez and raising similar claims, agreeing to place an accessibility notice on its site and to improve access to the site.

The court held that the settlement in Gomez did not moot Haynes' action, for three reasons. First, whatever Hooters agreed to do had not been done, so Haynes still was suffering a remediable injury. Second, while compliance with the Gomez settlement would provide some of what Haynes sought, it did not provide everything and Haynes sought some unique remedies. Third, and this should be most important, Haynes is not a party to Gomez and so lacks the power or right to enforce that order if Hooters fails to comply or if it should reach a different agreement with Gomez.

That control over enforcement of the judgmentt is essential to party status and to injunctive relief. It is why injunctions are particularized to the parties--binding the defendant as to the plaintiff and allowing the plaintiff to enforce if the defendant fails to comply.

Posted by Howard Wasserman on June 20, 2018 at 10:57 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, June 18, 2018

(SCOTUS Term): Behold the passive virtues

The Court had not one but two shots at partisan gerrymandering this term. And those chances included limiting (if not avoiding) charges of political bias, because both sides oxen were being gored--one case was Republican gerrymandering to screw Democrats and one case was Democratic gerrymandering to screw Republicans. Alas, the Court punted in both.

Gill v. Whitford, the Republicans-screwing-Democrats case from Wisconsin, was the higher-profile. The Court unanimously rejected the case on standing grounds. The Chief's opinion (joined by everyone at least in part) emphasized the individual nature of the standing inquiry in a vote-dilution case--each plaintiff must show the injury she suffered to her vote in her gerrymandered district, without regard to the makeup of any other district or the statewide balance of partisan power. The Court remanded to give the plaintiffs an opportunity to plead and offer evidence of standing, although Justices Thomas and Gorsuch did not join this part. Justice Kagan, joined by Ginsburg, Breyer, and Sotomayor (but not Kennedy), concurred to provide a roadmap for how plaintiffs can establish standing on a vote-dilution theory. This may include statewide evidence of harm to plaintiffs in districts throughout the state warranting a statewide remedy to relieve the injury to plaintiffs in multiple districts (on the assumption that the case include plaintiffs from all or most districts). Kagan also mapped how plaintiffs, including a political party, could establish standing on a First Amendment association theory, which by definition focuses on statewide harms.

Benisek v. Lamone was the Democrats-screwing-Republicans case from Maryland and was framed as lower stakes, focusing only on vote dilution in one district and not seeking to combat systemic statewide gerrymandering. Standing was not an issue. But the Court in a per curiam held that the  non-merits elements of the preliminary-injunction analysis were not satisfied, including the public interest and balance of equities.  The Court emphasized plaintiffs' delay in seeking an injunction and the impossibility, if the current map cannot be used, of drawing a new map that could be used in 2018.

Hasen points out that a third partisan gerrymandering case awaits the Court decision on whether to assert jurisdiction that includes a free-association challenge to explicit statewide partisan districting. But the case has similar standing concerns. We will see on remand how much mileage plaintiffs can get from Kagan's concurrence.

The analysis in Gill shows how inextricable standing is from the merits in constitutional litigation, especially seeking systemic mandatory injunctive relief. So inextricable that it confirms William Fletcher's view that standing is merits and lack of standing the failure of a claim. Gill shows this in two respects. First, it shows that the separation of injury and right makes no sense, because the injury depends on the right and the theory of right asserted. Second, the problem as to several plaintiffs was not the early allegations of injury but the failure to provide evidence at trial of that injury. But standing is supposed to be a jurisdictional threshold issue. If we are still arguing about it at trial, we are passed the threshold, so we should consider this as part of the substantive merits at trial.

The other point of note is the Chief's efforts to limit the prospective effect of Kagan's concurrence. On p. 17, he writes: "[T]he opinion of the Court rests on the understanding that we lack jurisdiction to decide this case, much less to draw speculative and advisory conclusions regarding others . . . The reasoning of this Court with respect to the disposition of this case is set forth in this opinion and none other."

 

Posted by Howard Wasserman on June 18, 2018 at 02:47 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Monday, June 11, 2018

Two thoughts on the recall of Judge Persky

Having listened and read various discussions about last week's recall of California trial judge Aaron Persky, I was struck by two points lost in some of the coverage.

First, there is a lot of focus on Persky being recalled and this being the first time in 100 years that has happened. But the issue should be less about recall than about any procedure to remove judges from the bench in response to unpopular rulings. While there had not been a successful recall of a judge in California, critics have successfully targeted judges for removal through other processes. Most famously, three members of the Supreme Court lost retention elections in 1986 following a campaign targeting their decisions in capital-punishment cases. And the anti-Persky movement would have been as problematic had critics found and supported someone to run against him for the seat when it next was up in 2022, when similarly based on disagreement with the Brock Turner decision.

Second, this drives home that the issue for judicial independence is not how judges are initially selected (election, political appointment, judicial commission, some combination), but whether and how they can be removed once on the bench. It does not matter whether Persky reached the bench via election (as he tried, but failed to do) or appointment (as he did). The issue is that, once on the bench, he could be recalled (or not retained or not re-elected) because of his rulings.

Posted by Howard Wasserman on June 11, 2018 at 12:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Monday, June 04, 2018

SCOTUS Term: Free Exercise "Happy talk" (Two Updates)

The Court decided Masterpiece Cake on the narrowest, least generally applicable grounds it could find--that some Colorado Civil Rights Commissioners made anti-religion statements in deciding the case, thereby failing to decide the case with the "religious neutrality that the Constitution requires"  or the "neutral and respectful considerations to which the baker was entitled. But the Court did not recognize Free-Exercise exception to public-accommodation laws and seemed to accept that religious beliefs do not provide an out to public-accommodations laws. That is, the problem was not the decision the Commission made (and the state courts affirmed), but the statements made in the course of making that decision.

• The majority's basic rationale is incoherent. It criticizes the "lack of due consideration for Phillips' free exercise rights and the dilemma he faced" and the failure to consider his religious objection "with the neutrality" required by the First Amendment. But the point of Smith is that there is no dilemma. Religious preferences, no matter how deeply held, yield to laws of general applicability. The required neutrality is in the law's application--the law cannot treat conduct performed for religious reasons less favorably than identical conduct performed for non-religious reasons. The majority here imposes some sort of neutrality of consideration. But what it really imposes is a "happy-talk" requirement--officials must speak respectfully and kindly and happily about religion religious objections to neutral laws, even while rejecting those objections. Because allowing those objections would eviscerate public accommodations laws.

• I have not seen this argued anywhere, but why wasn't this case moot? I believe I read that Phillips closed his bakery. So the sanctions imposed on him--cease-and-desist discriminating, comprehensive staff training, and quarterly compliance reports--no longer have any effect. [Update: In light of comments and further thought, the mootness point seems clear--the possibility of reopening the business renders the case not moot. I was incorrectly recalling a case in which the Court held that closing a nude bar did not render moot the challenge to an anti-nude-dancing ordinance. Apologies for raising an unnecessary issue]

[Second Update: So what happens next. The case came to SCOTUS on direct review from the state court, which was reviewing the Commission decision. The state court of appeals decision affirming the commission is reversed and so, therefore, is the Commission decision and order. One commentator to the Civ Pro listserv described this as an "implicit remand"--the Colorado court now can remand to the Commission to do the case over in a "neutral" manner. Then the question is whether the Commission wants to pursue the case anew, which may get us back into the question of whether Phillips is still running the bakery and/or whether he intends to do so in the future.

Posted by Howard Wasserman on June 4, 2018 at 01:18 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (17)

Saturday, June 02, 2018

The Civ Pro case that was and could have been

This decision from the District of Maryland granting in part and denying in part a 12(b)(6) motion is a nice Civ Pro problem, both for what it addresses and what it doesn't address--and how. This is a tort action by journalist Kurt Eichenwald, who brought tort claims against John Rivello (known as "@jew_goldstein), a Maryland citizen who sent a GIF containing an animated strobe image designed to cause Eichenwald, who has Epilepsy, to suffer a seizure. The defendant moved to dismiss two of the claims for failure to state a claim, arguing that Texas does not recognize the civil claim of battery (only assault), that there cannot be batter without physical contact, and that Texas does not recognize the tort of purposeful infliction of bodily harm as a prima facie tort. The court analyzed Texas law and the allegations of the complaint to reject the first two arguments.

The court dismissed the count of purposeful infliction, without prejudice. The court recognized this as a "developing area of the law," but that "[i]t is not the place of a federal court, particularly one in Maryland, to interfere with a developing body of state tort law in Texas." But it dismissed without prejudice, "with an eye alert to avoiding disregard of State law" and not preventing plaintiff "from trying his hand in a different court, or at a different time." This does not seem quite right. The uncertainty of state law is not a basis for the court to find that the pleading fails to state a claim for relief. Rule 12(b)(6) dismissal, even without prejudice, is not a form of discretionary abstention. No recognized abstention doctrine fits this situation; the closest might be Burson Burford, although that usually involves complex state administrative law, not individual torts. The court had two appropriate options. One was to certify the issue to the Texas Supreme Court (assuming Texas allows for certification). The other was to make an Erie Prediction of what the Texas Supreme Court would do if presented with this case. And those options are appropriate for any federal court, including one located in a state other than the one whose laws are at issue.

The Civ Pro issue that could have been is about personal jurisdiction. Eichenwald, who is from Texas, went to the home of the defendant, who is from Maryland. But there is a fun question of whether Eichenwald could have sued in Texas. Rivello directed the GIF at a Texas citizen intending to cause a Texas citizen harm. But did he intend that it be seen or cause that harm in Texas? By sending it online, it went everywhere and could have been seen wherever Eichenwald happened to be when he saw the file, not necessarily in Texas. The counter-factual combines the recent narrowing of Calder with the problem of establishing purposeful availment through online conduct.

Posted by Howard Wasserman on June 2, 2018 at 02:40 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (7)

Saturday, May 26, 2018

Contempt and the recalcitrant President

Paul Rosenzweig at The Atlantic games out what would happen if Robert Mueller subpoenas the President and the President refuses to comply.*

[*] TL/DR: A stalemate in which nothing can happen legally and the only hope is a political solution. This is where Trump's attacks, and GOP buy-in on those attacks, on Mueller and on the courts matter. Neither Mueller nor the courts have any credibility, so Congressional Republicans will not see disobedience as a crisis; they will see it as a heroic stand against an overweening prosecutor and judge.

But in considering the first step of civil contempt, Rosenzweig jumps right to the prospect of jail and the impossibility of pulling that off (because the Secret Service would never allow the U.S. Marshal to arrest the President, at worst resulting in a gun fight between officers of the two agencies). But the court has discretion to enforce contempt--to attempt to compel compliance--by other means short of jailing. One is monetary fines. So could the court impose a series of escalating fines against Trump? Could those be collected without having to go through and past the Secret Service, as by by attaching some assets? Would the threat to his wallet compel the President to comply? Or to do something really stupid?

Posted by Howard Wasserman on May 26, 2018 at 02:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, May 24, 2018

Universality as judicial impatience and control

Universal injunctions reflect judicial impatience and a desire of the court issuing the injunction to maintain control over a set of legal issues. Seeing disputes likely to recur, courts use the injunction to resolve all issues for all parties, rather than allowing other doctrines, designed to handle duplicative litigation, to do their work. And the reason is that those other doctrines may take awhile to reach a conclusion (that the issuing court believes is correct) and may leave control in the hands of another court.

In my forthcoming article, I argue that it is impatience with precedent. The Seventh Circuit recognizes Santa Clara will want to maintain its federal funding despite sanctuary policies, just as Chicago does. Rather than letting the process of precedent play out--having the district court or Ninth Circuit decide the issues in the separate action, perhaps using the Seventh Circuit decision as precedent; allowing courts of appeals to work through authority; allowing SCOTUS to resolve--the Seventh Circuit uses the injunction to get the singular result at once. This is both faster, because the process of building to consensus or resolution of precedent can take awhile. And it leaves the first court in control, rather than allowing another court to perhaps reject the first court's precedent.

This dispute over the contempt citation reflects impatience and a desire for control over a different limit on duplicative litigation--preclusion. The key to this case is the district court's conclusion that individual FLSA plaintiffs (and their attorneys) are in privity with the United States with respect to the validity of the overtime regulations, a dubious proposition (and, if I had to predict, the basis on which the Fifth Circuit will reverse the contempt order). But accepting that there is privity, the proper space for that analysis is issue preclusion--for Chipotle to argue in the District of New Jersey that the first court's decision as to the invalidity of the regulations has preclusive effect on the individual lawsuits. But this takes control from the first court, since "[d]eciding whether and how prior litigation has preclusive effect is usually the bailiwick of the second court."   By proceeding via injunction, the first court retains authority to decide all related issues under the guise of enforcing its injunction.

Posted by Howard Wasserman on May 24, 2018 at 07:26 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, May 23, 2018

Contempt and the universal injunction

Last month, I wrote about a case in which a district court in Texas enforced a universal injunction barring enforcement of the Obama Labor Department's overtime regulations (issued in a case against DOL) by holding in contempt private attorneys who brought a private action claiming that Chipotle violated those regs. The law firms have appealed the contempt order to the Fifth Circuit, calling it an "extraordinary and concededly unprecedented use of the contempt power to dictate the legal arguments that a stranger to that court may advance in another federal court." The firms question the conclusion that DOL can be in privity with millions of individuals merely because they would make the same legal arguments.

Tellingly, however, the plaintiffs accept the power to issue universal injunctions. Their challenge is to the logical conclusion that every universal injunction "against the federal government would apparently be binding, in personam, against each of the tens or even hundreds of millions of Americans that the relevant arm of the government purports to serve."

Posted by Howard Wasserman on May 23, 2018 at 07:03 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Trumps' Twitter blocking violates First Amendment

District court decision here. Eugene Volokh comments. I agree with the First Amendment analysis. While a public official can speak on his own, the dispute here is over an interactive part of Twitter and who gets to engage on those features.

After the jump, I consider several procedural points.

• The court did not rely on the "one good plaintiff" approach to standing. After finding that the four individual plaintiffs had standing, the court considered whether the Knight Foundation had standing on its own (based on wanting to read comments from one of the blocked individuals).

• The Court linked standing to Ex Parte Young and recognized that Young allowed for claims for prospective relief against federal officials as much as state officials. The latter can be based on § 1983 while the former are based on the judicially created equitable claim. But the precedents overlap.

• The big standing issue involved Trump's aide Daniel Scavino, who has the power to control access to the account (including blocking or unblocking users), but did not block the individual plaintiffs. But the plaintiffs remained injured so long as blocked. Because Scavino could unblock, their ongoing injury was traceable to him.

• The court discussed whether the President or Scavino were state actors in managing the account, although the analysis was buried in the public-forum analysis. By contrast, in Davis v. Loudon County Board of Supervisors, involving a local official blocking members of the public from her Facebook page, the court focused on state action.

• The court gave a lengthy discussion of whether a court can enjoin the President. It rejected the categorical argument that the President cannot be enjoined, acknowledged that courts must hesitate and balance separation-of-powers concerns, and found that an injunction here would only compel the President to act constitutionally without interfering with executive discretion. The court declined to resolve the issue, because an injunction against Scavino and a declaratory judgment offered sufficient relief. (The court's decision to issue only declaratory relief without an injunction highlights a point Sam Bray made--declaratory relief is a sufficient remedy where limited judicial oversight or management is necessary).

• The court's decision not to issue an injunction deprived it of an opportunity to make the injunction universal and prohibit Trump and/or Scavino from blocking anyone from his Twitter account, in a case in which such a non-particularized remedy is unwarranted. But this reminds us that a declaratory judgment should be as party-particularized as an injunction. If Trump or Scavino block people other than the plaintiffs from the account, they would not act inconsistent with the judgment and it would not alone be a basis for converting the D/J into an injunction. New Twitter users must sue to assert their own rights to their own judgments, regardless of whether the judgment is a declaration or an injunction.

Posted by Howard Wasserman on May 23, 2018 at 06:37 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, May 21, 2018

JOTWELL: Steinman on Davis and Whytock on human rights litigation in state court

The new Courts Law essay comes from section co-editor Adam Steinman (Alabama), reviewing Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018), which considers how human rights violations can be litigated and redressed in state court.

Posted by Howard Wasserman on May 21, 2018 at 11:54 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, May 14, 2018

Mootness in Sanchez-Gomez

SCOTUS on Monday decided United States v. Sanchez-Gomez, unanimously holding (per the Chief) that the constitutional challenge to a district-wide policy of shackling all pretrial detainees was moot when the prosecutions of the four defendants ended; neither the special treatment of class actions (where there had been no class certification) nor capable-of-repetition kept the case alive. My opinion analysis is on SCOTUSBlog.

The opinion contains a fair bit of language emphasizing the individual nature of constitutional litigation, thereby supporting the view that injunctions must be particularized to the parties and not accord universal protection or limitations to non-parties. The Court emphasized the "usual rule that litigation is conducted by and on behalf of the individual named parties only" and that the "'mere presence of . . . allegations' that might, if resolved in respondents' favor, benefit other similarly situated individuals" does not matter. The Court was talking about Article III mootness and when disputes remain alive. But the principles carry to questions such as the scope of an injunction.

Posted by Howard Wasserman on May 14, 2018 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)